By Michael Abramowitz and Dan Eggen
Washington Post Staff Writers
Monday, September 17, 2007
President Bush has selected retired federal judge Michael B. Mukasey as his new attorney general, sources said yesterday, moving to install a law-and-order conservative at the Justice Department while hoping to avoid a confirmation fight with Senate Democrats.
The nomination of Mukasey, considered an authority on national security issues, could come as early as this morning, the sources said. The White House was already seeking over the weekend to tamp down concern in the conservative legal world about Mukasey's views, assuring allies that he shares Bush's views on executive power and the need for strong action against terrorists.
In picking Mukasey, Bush would sidestep the uproar that would have erupted in the Senate had he chosen one of the early front-runners, former solicitor general Theodore B. Olson. Some conservatives made clear their puzzlement that Bush was passing over one of their favorites for someone who has been praised by Senate liberals and their allies.
But the White House apparently decided that Mukasey is conservative enough, and that it is important to restore confidence in the Justice Department as quickly as possible, with a choice that could garner bipartisan support. The department has been in turmoil under Alberto R. Gonzales, the Bush confidant whose firing of nine U.S. attorneys and the ensuing controversy led to his resignation last month.
Senate Democrats and their allies signaled yesterday that they were likely to accept Mukasey without a big fight and said they saw the pick as a conciliatory gesture from Bush.
"While he is certainly conservative, Judge Mukasey seems to be the kind of nominee who would put rule of law first and show independence from the White House, our most important criteria," Sen. Charles E. Schumer (D-N.Y.), a frequent critic of the Gonzales Justice Department, said in a statement. "For sure, we'd want to ascertain his approach on such important and sensitive issues as wiretapping and the appointment of U.S. attorneys, but he's a lot better than some of the other names mentioned and he has the potential to become a consensus nominee."
Meanwhile, some conservatives close to the White House seemed prepared to accept the president's judgment about Mukasey, who also has close ties to Republican presidential candidate Rudolph W. Giuliani, the former New York mayor.
"He has all the objective qualifications to be an excellent attorney general," said Edward Whelan, the president of the Ethics and Public Policy Center. "He's not well known, so there would be some question marks in the minds of a lot of folks if he's nominated. But my strong sense is that the more people learn about him, the more impressed they will be."
White House press secretary Dana Perino declined to comment yesterday.
Mukasey would be the latest in a string of key Bush appointments that come from outside Texas or the president's inner circle and seem less ideological than some of his previous appointments.
In 1987, he was nominated by President Ronald Reagan as a U.S. District Court judge in the Southern District of New York. He spent the next 19 years in Manhattan's federal court, including the last six years as the chief judge. He retired in 2006 to return to the law firm Patterson Belknap Webb & Tyler.
As a federal judge, Mukasey was best known for his expertise on national security issues, in part because he presided over the trials of "blind sheik" Omar Abdel Rahman and others in connection with the 1993 World Trade Center bombing. Mukasey lived under heavy federal security for years because of his connection with that case. He also handled the early case against Jose Padilla, who was declared an "enemy combatant" by Bush in 2002. Mukasey ruled that the government had the power to make the declaration but found that Padilla should have access to his lawyers.
As a prominent judge in one of the country's busiest courts, Mukasey was involved in other high-profile cases, including battles between insurance companies and a World Trade Center developer after the Sept. 11, 2001, attacks. He dismissed in 2004 lawsuits against an Italian insurance company for policies held by Holocaust victims.
Baruch Weiss, a partner at the law firm of Arent Fox and a former federal prosecutor in New York who appeared before Mukasey, described him as a very smart, business-like judge who kept things moving quickly in his courtroom and who has a reputation for integrity.
Weiss said Mukasey's appeal to the White House most likely was his independent stature; he is not, as he put it, "someone who would simply be doing the president's bidding."
"He is thoughtful, independent, very much a person of integrity -- he's nobody's plaything," said Paul A. Engelmayer, a Democrat and former supervisor in the U.S. attorney's office in Manhattan. "If there is an analogy here, it's to [former FBI director] Louis Freeh -- who obviously bedeviled Clinton. He will not be a tool of the Bushies."
Some of Mukasey's public pronouncements have pleased conservatives. During one 2004 speech, excerpts of which were published by the Wall Street Journal, Mukasey strongly defended the controversial USA Patriot Act antiterrorism law and said its "Orwellian name . . . may very well be the worst thing about the statute."
He also scoffed at complaints from librarians and others that the statute gave the government too much power to spy on ordinary Americans, arguing that the allegations were not supported by evidence.
Mukasey, who was Manhattan's chief federal judge at the time, also defended a wave of terrorism-related immigration arrests by the FBI after the Sept. 11 attacks. "We should keep in mind that any investigation conducted by fallible human beings in the aftermath of an attack is bound to be either over-inclusive or under-inclusive," Mukasey said. "There are consequences both ways. The consequences of over-inclusiveness include condemnations. The consequences of under-inclusiveness include condolences."
In an op-ed article last month for the Journal, Mukasey said that the Padilla case and others underscore the shortcomings of the regular criminal justice system for terrorism defendants, and he advocated some kind of alternative system for handling such cases. That view is likely to raise eyebrows within the Justice Department, where many career attorneys pride themselves on the department's ability to try to convict terrorism suspects under traditional criminal procedures.
Andrew C. McCarthy, who led the prosecution of Rahman in front of Mukasey, wrote last week on the National Review Web site that the former judge would "instantly restore the department's well-deserved reputation for rectitude, scholarship, vision and sober judgment."
McCarthy, now a conservative commentator, portrayed Mukasey as meticulous and balanced in his handling of the Rahman case -- "carefully crafting insightful opinions on the proper balance between national security and civil liberties."
Some social conservatives have raised questions about Mukasey's 1994 ruling against Jia-Ging Dong, a Chinese man who sought political asylum in the United States. Dong had argued that he would be persecuted if he was sent back to China, because he had attempted to help his wife avoid a forced abortion under the communist country's one-child policy.
Immigration courts had ruled against Dong, finding that China's enforcement of the policy did not constitute persecution allowing asylum under U.S. law. Mukasey agreed and upheld the government's deportation order.
"Dong has not pointed to any evidence that would suggest that he was persecuted on a statutorily protected ground, much less evidence that 'compels' such a conclusion," Mukasey wrote in his ruling.
The view from Democrats and their allies yesterday seemed to be that Mukasey was about the best they could hope for from Bush. Ralph Neas, president of the liberal advocacy group People for the American Way, predicted Mukasey's confirmation, assuming he is willing to answer "legitimate questions" from the Senate Judiciary Committee.
"He seems like a bona fide conservative Republican, not a right-wing ideologue," Neas said. "He seems like someone who would attract strong bipartisan support and who could help restore public confidence in the Department of Justice."